Mass. Davol Reconix Hernia Mesh Case Proceeds on Design Defect Theory

BOSTON — A Massachusetts federal magistrate judge has refused to dismiss a breach of implied warranty of merchantability claim in a Davol hernia mesh patch case, ruling that it is not barred by comment k of the Restatement (Second) of Torts § 402A.

In a Sept. 23 order, Magistrate Judge Katherine A. Robertson of the U.S. District Court for the District of Massachusetts predicted that the commonwealth’s high court would apply comment k to medical devices on a case-by-case basis.

The judge also allowed the plaintiff’s negligence claim to proceed, ruling that the plaintiff has sufficiently alleged that Davol …